Ideas, Artifacts, and Facilities: Information as a Common-Pool Resource

I INTRODUCTION There is an increasing concern about the implications of recent and impending legislation on the future of academic research, open science, traditional knowledge, and the intellectual public domain. The Duke Law School Conference on the Public Domain brought together, for the first time, an interdisciplinary group of leading scholars studying the increasing enclosure (1) of the global information commons. In the past five years, law review articles have described an information arms race from various perspectives, with multiple sides battling for larger shares of the global knowledge pool. (2) Information that used to be "free" is now increasingly being privatized, monitored, encrypted, and restricted. The enclosure is caused by the conflicts and contradictions between intellectual property laws and the expanded capacities of new technologies.(3) It leads to speculation that the records of scholarly communication, the foundations of an informed, democratic society, may be at risk. This "intellectual land-grab"(4) is an outcome of new technologies and global markets. Distributed digital technologies have the dual capacity to increase access to information while in some instances restricting such access. These technologies have generated greater access to important information about history, science, art, literature, and current events, while at the same time enabling profit-oriented firms to extract value from resources previously held in common and to establish property rights.(5) Multiple forces are vying for capture and restriction of traditionally available knowledge: corporations versus indigenous peoples, such as Monsanto owning the patent on the genetic structure of the neem; federal and state governments versus citizens regarding balancing encryption and digital surveillance with individual privacy; universities versus professors as to whether institutions or individuals will own intellectual property; and publishers versus libraries in the ephemeralization of library collection s through licensing, bundling, and withdrawal of information. This competition for ownership of previously shared resources is not unique to the public domain of knowledge. Given the opening of vast markets for commodities of all kinds, many natural as well as human-made resources are under pressure. The world's fisheries, for instance, are fighting depletion because of the capture capabilities of larger trawlers, wider and finer nets, and larger fleets. Local control of forests throughout the world is being increasingly encroached upon by state and private interests, resulting in alarming rates of deforestation. Resultant forest burning is not only rapidly reducing primary growth forests but is also contributing to the degradation of the global atmosphere as well.(6) Commodification and privatization of natural resources is a trend with virtually all types of resources. And radical changes in the structure and process of all natural and human-constructed resources can occur through the development of new technologies. (7) The problems are complex, multilayered, and of crucial importance. To direct attention to this evolving situation, James Boyle has called for the recreation of the public domain, drawing from the intellectual construct of the environment. "Like the environment," he writes, "the public domain must be invented before it can be saved." (8) A greater depth of understanding of the public domain requires the concept to be more deeply analyzed and clarified. It is a logical step, therefore, to draw from the fruitful research and analytical methods applied to the study of common-pool resources ("CPRs") and natural resource management. The goal of this article is to summarize the lessons learned from a large body of international, interdisciplinary research on common-pool resources in the past twenty-five years and consider its usefulness in the analysis of scholarly information as a resource. …